Sunstein on Rights

I attended a little lunch discussion at Cato Friday on Cass Sunstein's new book, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever.Among Sunstein's claims is that FDR effectively effaced the distinction between positive and negative rights. The argument is that even “negative” rights, such as the right to property, depend on an “active, well-funded, and often coercive” state to define property in the law and to protect it. Sunstein argued that the idea that he has property rights in Hyde Park would be nothing but a meaningless aspiration without the slapping hand of the state.
I address this idea below, and it continues to puzzle me. At one point Sunstein mentioned that Cato had just given an award to DeSoto, and implied that DeSoto's work is really just about the need for the state to better define legal rights and enforceable instruments in LDCs. It is about that, but that's not the same as Sunstein's idea, which is that there ARE no rights in the absence of the state. DeSoto's argument rests squarely on the notion that the poor around the world define and defend property rights extralegally, and often in direct opposition to the laws of the state.
DeSoto likes to say that the state often knows less than the dogs, who at least know where the boundaries really are; they know when to bark, even if there is no entry in the state's big-book-of-who-owns-what.
DeSoto is saying that there are often de facto property rights, despite the state. The superior forms of legal structure that states sometimes provide do not create the basic rights; it codifies them, and by doing so it creates the possibility for new, more intricate and abstract levels of economic definition and exchange.
I take a right, like a property right, to be what Searle calls an institutional fact. When there is a certain kind of shared set of beliefs and intentions you get an institutional fact. That Barry Bonds hit 73 home runs in 2001 is an institutional fact. There are no home runs in nature. You can't go discover that Ogmir the Sturdy hit the first home run in 40,000 BCE with a stone and log, because a home run is defined by the rules of baseball. Before the rules of baseball there were no home runs. The rules of baseball define a fairly stable and undisputed class of institutional facts because the people authorized to define the rules of baseball (a further institutional fact) agree that the rules are the rules (they have put their official stamp of approval on the rule book), and the people who play, watch, and comment on baseball accept these as the rules, and so forth.
Notice that the rules of baseball simply require the right sort of agreement. The agreement need not be backed by force. Suppose the Black Sox claim that they get four outs, and refuse to take the field. Well, they're wrong. The rules are the rules. Suppose they demand a stop in play and a renegotiation of the rules. Well, they can't do it; it's not in the rule. If our rebellious team ruins the game by failing to adhere to the rules, or demanding new rules, it's not the case that there were no rules. There were rules, and according to the rules they probably lost by forfeit. The umpire is the umpire, even if we refuse to recognize his (non-coercive) legitimacy.
Now, property rights are more important for human well-being than the rules of baseball, but they are not different in kind. If the members of a community are in sufficient agreement about the principles that define property rights–if they all agree to play the same game, to enact a particular form of life–then property is an institutional fact, a part of social reality.
It is an open question in any particular circumstance whether coercion is a condition for the kind of agreement that constitutes that social reality of property. But it remains that if all the police in Chicago, or Illinois, or the USA, fell asleep simultaneously due to Dr. Evil's having laced all the nation's doughnuts with a substance having dormitive virtue, and some kid broke into Sunstein's Hyde Park flat and stole the ruby choker he was going to give to Martha for May Day, that choker was still his–he still had a right to it–even though the state was for a night only dreaming of coercion. Ask anyone. It wasn't the kid's to take.
It may be true that certain kinds of agreement worth having require coercion to achieve. But Sunstein struck me as remarkably glib about the way identical problem reiterate at the level of the state. Offices and the powers of state officials are institutional facts not unlike property rights. Either these facts exist simply in virtue of voluntary agreement and a credible will to comply with the terms of the agreemeement, or the institutional fact-constituting agreement to assign legitimate and limited coercive powers itself requires coercion , in which case the question just repeats itself, ad infinitum.
It is arbitrary for Sunstein to assume that the problem of voluntary agreement and compliance at the level of property is somehow more vexed than the problem at the level of state authority. Indeed, his position is beyond arbitrary. He claims that there cannot be property rights without the state. Yet, if we take seriously the problem of voluntary cooperation that creates the impetus to bring in coercion, it becomes evident that the state can be of no help. It cannot possibly be our deus ex machina, our turtle holding up the elephant of property. Property and the state both require a web of agreement, trust and commitment (moral infrastructure) that is prior to them both.